Sunday, September 27, 2015

Sometime before the Supreme Court's ruling in Obergefell v Hodges, I wrote a piece entitled "Why I Don't Care If You're Gay." My argument was that regardless of our personal opinions, there is no doctrine in Mormonism regarding homosexuality. We believe our doctrines come from God through revelation, and since the Lord has not seen fit to address homosexuality in the 182 years since the Restoration began, I concluded it is not a topic my religion requires me to get exercised over.

Though others of my faith consider legal acceptance of same-sex marriage to be a harbinger of the destruction of America, the Book of Mormon, which we accept as a warning for our times, gives no warning to us on that particular topic. Neither is it mentioned in any revelation given through the Doctrine & Covenants. Though Mormons are entitled and encouraged to have and share differing opinions on social issues, I don't see this issue as having any bearing on my religion. My actual religion charges me to apply the golden rule to all, accepting others just the way they are.

It's worth remembering that the Supreme Court did not grant anyone the right to same-sex marriage. It does not have that power. The decision of the court merely recognized that common law rights cannot be held by some while denied to others. Many of those who today are lamenting over the gay marriage ruling, and what that travesty will mean for the future of this nation, might benefit from a bit of introspection.

Twenty or thirty years ago there were very few in the gay community who were clamoring for the right to marry. Indeed, same sex marriage may not have become the issue it is today had certain busybodies not actively pushed for legislation deliberately intended to make life uncommonly difficult for homosexuals, many of whom would have preferred to keep their private lives to themselves. As recently as 2009, Professor Nancy D. Polikoff of the American University Washington College of Law had this to say:

"A consumer of current news might imagine that access to same-sex marriage is the most contested issue in contemporary family policy, and that marriage is the only cure for the disadvantages faced by lesbian and gay families. Both of these observations would be wrong. The most contested issue in contemporary family policy is whether married-couple families should have “special rights” not available to other family forms." ("Laws That Value All Families," Journal of the Academy of Matrimonial Lawyers, Vol 22, pg 86)

Professor Polikoff's memorandum includes short profiles involving people who were forced by legislation to endure injustices that, in the words of the Obergefell decision, "many opposite-sex couples would find intolerable." I've been around long enough to recall that some folks who objected to gay couples living together felt the problem could be solved if only "those people" were barred from such privileges as custody and visitation rights with their own children, hospital visitation rights with a dying partner, or basic rights to property, inheritance, and other benefits -things that really have nothing to do with a person's sexual orientation at all. Apparently the people who pushed for these laws felt that by making life difficult for same-sex couples, homosexuality would just go away.

But that is not what happened. Same-sex couples did not stop cohabiting; instead their numbers grew. But now they were keenly affected by legislation that barred them from enjoying rights that had nothing to do with their having same-sex attraction, but rather on the grounds that they were not married.

Those who had pushed for the enactment of laws restricting rights for gay couples unwittingly ensured things would come to an inevitable showdown: if certain rights and privileges were only available to married people, the only solution left for same-sex couples would be to demand the right to marry. A reading of Obergefell shows that "far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities." The several plaintiffs in that case have clearly suffered injuries of a type that were never suffered by opposite sex couples due to inequities in statutory law.

The court was not unsympathetic to those who oppose same-sex marriage on grounds of morality, but recognizes it was the active interference by the state that yielded the consequences that brought us to this point:

"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right." (Obergefell et al v. Hodges, et al; 14-556-3204-4, pg 19, italics mine.)

In other words, the court is saying it is not so much the right to marry that is at issue; it is the right not to be barred from enjoying certain rights and privileges that state governments had been granting to one class of people, and denying to another.

If there is a lesson here for those who are adamantly against same-sex marriage, it may be this: perhaps you should have left well enough alone twenty years ago. By concerning yourselves with the perceived sins of others, and improperly using government to pass laws to enforce your will, you have brought to pass the very thing you wanted desperately to avoid. It is already well-settled law that the right of a man and a woman to marry is fundamental to our common law. That's why, like it or not, when pushed to the wall on this issue the court was given little option but to conclude:

"The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter." (ibid, 17)

If you are a Christian who believes the power of the state should be invoked to enforce God's law, don't be surprised to learn your foes have the capability of invoking that same power as well. Orthodox Christian theologian Davd J. Dunn writes,

"Today's Christian conservatives seem to be worshiping America, or at
least a certain idea of it, when they ask the government to protect the
'sanctity' of marriage. In doing this, they have vested the state with
the power to sanctify...Christians
who demand the state take up the task of defending marital sanctity are
effectively making the state their god. They seem to think that their
local capitol can perform miracles when only the Holy Spirit has the
power to sanctify.

"If marriage truly is a sacrament, as many
Christians (including myself) believe, then we need to be much more
concerned with developing a robust theology of marriage and making that
understood among our congregations than with mobilizing them to deny the
right of a civil marriage to same-sexed partners. If we believe
marriage is a sacrament, then all marriages performed outside the church
are civil marriages, and however the state defines marriage can have
absolutely no bearing on its sanctity as far as the church is concerned.

"Christians opposed to gay marriage can continue to see civil marriages
as sacramentally illegitimate without sponsoring ballot initiatives to
ban it. They are free to join churches that share their views without
essentially vesting judges or Elvis or the U.S.A with the power to
sanctify."

And Now, To Offend The Gays...
I happen to personally believe that marriage between a man and a woman is ordained of God. Does that mean God is displeased with a marriage between two committed persons of the same sex?

I have no idea. He has not seen fit to inform me on this issue, and although there are a couple of old testament references that don't purport to have come from the mouth of God Himself, He has not addressed the issue through His living prophets in almost two centuries. So I remain focused on my own marriage, which is the only marriage I have stewardship over. It is not my place to pass judgment on the marriage of anyone else.

Do I believe, as some are convinced, that gay marriage will be bad for America? Again, I have no idea. I guess time will tell.

But I can tell you what I already think is proving bad for America: stupid gay people.

I can always tell whether someone has actually read the Obergefell decision or not, because many of those who have not read it somehow think gays have been granted the right to deprive other people of their rights. If you are one of those particular types of gay people, allow me to set you straight:

All the Supreme Court did was recognize your right to marry. That ruling does not say you have to get married, and it did not bestow upon you the right to have other people suddenly approve of you, or like you, or sell their stuff to you. You can get married if you want to. Nothing is stopping you. But you don't suddenly have a magic wand to wave around to get people to do your bidding just because you're gay.

If someone makes their living baking wedding cakes, you don't have a common law, constitutional right to insist they bake one for you. If a florist doesn't want to cater your wedding, find a gay florist. (Trust me, they're out there.) And if you are outraged because a pizza parlor refuses to cater your wedding, you might want to rethink your assumptions, because if you're planning a gay wedding where your guests are served pizzas, your vision of what a gay wedding is supposed to look like may need a little tweaking.

The thing is, other people still have the right to refuse you service. The so-called "Gay Marriage Ruling" may have recognized your right to be a queen, but it didn't all of a sudden make you queen of the world. You have the same common law rights as I do; that's all that ruling said.

When the lovely and pristine Connie Bradfield announced her engagement to me back in 1980, some members in the ward she grew up in did not approve. She was their princess, and they felt I was unworthy of her. They were right, of course. But that's beside the point. There was a woman in Connie's ward who was skilled at making beautiful wedding cakes, and we hired her to bake ours. Happily, this woman was not one of the ward members who disapproved of our marriage. But what if she had been? What if she so disapproved of our marriage that she refused to bake that cake? What would we do then? O, whatever would we do?

We would hire someone else to bake our cake.

Listen, gay people. There will still be others in this world who do not approve of you getting married and living together. So what? You do not need their approval. You are equal, but only equal under the law. That's the only guarantee any of us are entitled to, and it's all most of us will ever get. If you're looking to convince others to respect your rights, promoting the image that gay people are whiny and petulant is not going to work in your favor.

Hey Dummy, You Don't Need Permission
Which brings me to the really stupid thing I recently observed when a whole lot of people, both gay and straight, got all worked up over an incident in Kentucky. I'm talking about the unprecedented outrage over Kim Davis, the county clerk who was demonized by strangers and treated in the press as though she had run over somebody with her car. Her unspeakable crime? Refusing to issue state marriage licenses.

Setting aside for a moment the fact that Mrs. Davis was entirely within her rights to withhold licenses to anyone she chose (and I'll explain why later), why would anyone, gay or straight, even care? Why would any couple allow their wedding to be held up simply because they couldn't get a license? Why didn't same sex couples simply do what millions of heterosexual Americans have been doing since pre-colonial times?

Why not just go and get married?

It would seem we live in a time where most people think they have to have a marriage license, even when they don't know what a marriage license is. Well, for starters, you don't really have to have one in order for your marriage to be lawful in America. In this country the tradition of obtaining a license just so you can get married is not that old. Less than a hundred years ago no one deemed it a necessary prerequisite to marriage. Secondly, the marriage license was born of early 20th century racism. And if that isn't enough to frost you, the marriage license also weakens the sanctity of marriage.

Here is the definition of "license" from Bouvier's Dictionary of American Law, published in 1856:

"License: A right given by some competent authority to
do an act, which without such authority would be illegal. The instrument or
writing which secures this right, is also called a license."

So a license is permission to do something which would otherwise be illegal. But didn't the Supreme Court just affirm that marriage is a fundamentalright for all? How then can getting married be illegal? And not just illegal, but so illegal that you must obtain special permission from a government official?

If, as the Supreme Court has held time and again, marriage is a fundamental, common law right protected by the constitution, why would you even think you were required to ask a county government toady for additional permission? Is it because you just like standing in lines?

One of the main reasons we give our governments the right to grant licenses in the first place is in order to regulate activities that are inherently harmful or dangerous. I do not, for instance, have a fundamental right to manufacture poisons or explosives in my home, because poisons and explosives are inherently dangerous. I could apply for a license to manufacture such products, which would give me special permission to do that which I wouldn't normally have a fundamental right to do. But with that license come necessary controls and expenses, like making certain my activity is performed a safe distance from other people.

But why license a marriage? What is it about weddings that make them so dangerous that in the 20th century, states began requiring people to get permission from the government?

My edition of Bouvier's, from which I quoted above, was published during a time when no sane person even thought of going to the state to ask permission to marry. So there is no entry in Bouvier's for "marriage license," though there is plenty in there about marriage - mostly about how in America marriage has consistently been recognized as a fundamental, common law right. In this country, if a couple were of the age of consent and competent to contract, they did not ask anyone's permission to get married. They just got married.

I was something of a collector of dictionaries back in the day, and the earliest edition of Black's Law Dictionary I own is a barely held-together edition of Black's Second Edition, published in 1910. In that dictionary the definition of license is virtually the same as in Bouvier's, but now Black's has added an entry for Marriage License:

"A written license or permission granted by public authority to persons who intend to intermarry, usually addressed to the minister or magistrate who is to perform the ceremony." (Black's Second Edition, pg 724)

By 1910, there was a reason that entry had appeared. Note that license was granted to "intermarry," which was legally distinct from the common law right to marry. In the post civil war era, miscegenation was made illegal in most states. By 1924 some 38 states had introduced the concept of marriage "licenses," for the purpose of limiting the number of marriages between whites and people of "subhuman" races such as Negroes, mulattoes, Indians, Filipinos, Japanese, Chinese, Mongolians, and Malays. (See Stephanie Coontz, Marriage, A History: How Love Conquered Marriage)

Common law marriage between races had been taking place since colonial times and was not all that rare up up to and through the early 1800s; especially marriages between whites and Indians on the frontier. But over time attitudes changed, and by 1929 most states had legislated intermarriage right out of existence through use of the marriage license. (It was not until 1967, in Loving v. Virginia, that the Supreme Court invalidated intermarriage statutes by affirming that marriage is a constitutional right.)

These licensing laws required both the man and the woman to appear in person to obtain their marriage license, ensuring that no mixed-race couples slipped through undetected. For most young couples in love, the act of going to the courthouse together to apply for their marriage license was part of the thrill; just one of the details to be handled on the way to the altar. The licensing fee was minimal, and after the wedding the license doubled as the marriage certificate, which proved they now were officially married. Ooh! Exciting!

You're Waiving Your Rights
I don't care if you're gay or straight, but if you believe you have to get permission from the government before you can exercise a constitutional right, aren't you saying you don't really believe you have that right? Either your rights are fundamental, or they are conditional. What you believe about your rights depends on whether you exercise them or ask permission for them.

It seems to me that the recent brouhaha over Kim Davis and her refusal to issue Kentucky state marriage licenses in Rowan County was a missed opportunity for the gay and straight communities in that part of the country. There are only a handful of states left in the union that continue to recognize common law marriage, and Kentucky is not one of them. The failure of the county clerk to grant permission to any couple -gay or straight- who might have applied, would have been the impetus for any petitioners to fall back on their right to a traditional marriage, the kind that has always been lawful in this country from the time the pilgrims landed at Plymouth.

A lawful marriage between a man and a woman entered into in Rowan County, Kentucky without the couple obtaining a license would test whether the state had an obligation to recognize an unlicensed marriage, given that the couple had attempted to obtain a license and failed. And the marriage of a same-sex couple entered into without a license would test the claim of whether same-sex couples actually do have the same fundamental right to marry that opposite sex couples have been guaranteed for hundreds of years.

Well, it's possible they don't. We have hundreds of years of precedent to prove that marriage between a man and a woman is lawful, with or without a license. On the other hand, the holding in the Obergefell court was that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. (Obergefell Pp. 3–28).

Now, my reading of that decision merely tells me that a state that issues licenses to opposite sex couples must also issue licenses to same-sex couples. But judging from the reaction to the Rowan County incident, many same-sex couples seem to think they are barred from marriage unless they have a license. Well, people are entitled to their beliefs, and if they believe they are not free to contract, I guess they're not.

Like I said, it was a missed opportunity to get some answers. What if a same-sex couple doesn't want to be licensed? What if they get married without a license in a state that still recognizes common law marriage? Will their marriage be valid in other states as it is with opposite sex couples? Or must they be licensed because their right to marry has been merely granted by the court as a civil right, and not actually guaranteed by the constitution?

To Be Continued...
These are interesting questions, but I confess all this so far is by way of introduction to the real topic I want to address, which I will get to in my next post a week or two from now. I believe traditional marriage is under threat, but I don't believe that threat is caused by people who are different from me seeking to pursue their own happiness in their own way. That does not affect my marriage nor my rights. The biggest threat to traditional marriage has always come by way of government interference into marriage, which is a private contract between two people.

Although what I've written today is a preface to what I'll be discussing in my next post, for now I want to lay aside the question of whether same-sex marriage is proper in the eyes of God, since I just don't know. What I can do is to reaffirm my belief that at the very least, marriage between a man and a woman is ordained of God. My religion teaches that God wants his sons and daughters to marry.

But here is a curious dichotomy: If you are a young man and young woman who happen to belong to the Church of Jesus Christ of latter-day Saints, and you are looking forward to being wed according to the religious tenets you have been raised on, you may be surprised to learn you will not be permitted to be married in your local chapel or sealed in any temple unless you first obtain permission from the government just like gay people apparently have to. Unlike your grandparents and great-grandparents, you will not be permitted to submit to God's will unless you first submit to the will of your local county officials and ask their permission. You cannot have a traditional church wedding nor a temple sealing unless you first reject hundreds of years of religious tradition and seek secular permission beforehand.

It sounds unbelievable, but in Mormon marriages today, the desire of the state trumps the will of God. And this holds true even in Utah, where common law marriage is still recognized. What that means is the government would prefer you get a license, but will still recognize the validity of your marriage even if you don't.

Your bishop will make you get one anyway.

I've wondered why that is for over thirty years, and only recently figured out why.

Announcements:Many readers of this blog have arrived here after experiencing a crisis of faith marked by the discovery that church history was different than what they were taught. Unfortunately, rather than help members reconcile these issues, the current Church leadership continues to drive more and more of the faithful away by doubling down and perpetuating the cover up. Earlier this month Corbin Velluz discussed this unfortunate state of affairs in The Mormon History Conspiracy